The Saskatchewan Court of Appeal has ordered a new trial for Curtis Vey and Angela Nicholson, who were convicted in 2016 for conspiring to murder their spouses.
The court had heard secret audio recordings in which Nicholson and Vey discussed a plan to kill Vey’s wife in a house fire and killing Nicholson’s husband by drugging him and then making him disappear. The court heard that Brigitte Vey hid an iPod under the kitchen table at a farmhouse shared with Curtis Vey and secretly recorded her husband and Nicholson hatching the plan on July 1, 2013.
The Crown contended this wasn’t just the fantasies of lovers, but a detailed plot. Defence lawyers said the conversation was offensive and stupid, but not criminal because there was no intent to follow through.
Justice Georgina R. Jackson said in a written decision that Chief Justice Martel Popescul, who presided over the trial, erred in two ways that merit a new trial.
Popescul didn’t adequately charge the jury with respect to Vey’s defence that he didn’t have a genuine intention to commit murder, Jackson wrote.
“At the outset, it must be acknowledged that charging a jury with respect to conspiracy is a difficult task. Further, I note the trial judge’s charge to the jury follows closely the various model jury charges in a number of aspects. The difficulty, however, is that charging the jury in this case had several distinctive features, including the evidence that Mr. Vey knew or suspected that he was being recorded and the effect of that evidence on both Mr. Vey’s and Ms. Nicholson’s culpability.
“In my respectful view, the Jury Charge did not adequately address this critical aspect of the appellants’ defence, notably, that one of them was not intending to agree, but was giving the pretence of an agreement to get back at his family. In light of the evidence that showed Mr. Vey had known in the past that his wife had been recording him – a fact confirmed by Brigitte Vey – the judge was required to draw the jury’s attention specifically to Mr. Vey’s defence and its effect on both Ms. Nicholson and Mr. Vey, and the burden on the Crown in relation to the evidence.
“The jury should have been instructed that if they were satisfied that Mr. Vey did not intend to agree to carry out the common purpose, or if they had a reasonable doubt as to his intention, not only would they be required to acquit Mr. Vey, they would also be required to acquit Ms. Nicholson.”
A second issue was properly explaining the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt, Jackson wrote.
The appeal cited the R v Villaroman decision, which considered circumstantial evidence, the drawing of inferences from circumstantial evidence and the burden of proof on the Crown when guilt is determined on the basis of inferential reasoning – but which was issued more than a month after the Vey and Nicholson trial.
Jackson wrote: “Clearly, it was part of the Crown’s case that the jury could draw inferences of guilt from the July 1 Recording, and Crown counsel, in her address to the jury, appropriately invited the jury to draw such inferences … Notwithstanding this invitation, the jury was not instructed as to the burden the Crown was required to bear with respect to the drawing of these or any other inferences.
“Importantly, as stated in Villaroman, there is a special concern inherent in circumstantial evidence in a case, such as this, that the jury may unconsciously ‘fill in the blanks.’ In that regard, in deciding whether this Court should intervene, we cannot overlook the oral recordings of Mr. Vey during his police interview and while speaking to the undercover police officer in his cell, wherein he repeatedly stated that he had entered into the conversation with Ms. Nicholson intending to teach his family a lesson, an averment supported by Brigitte Vey’s evidence.”
